The plaintiff alleges that he was riding a bicycle in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff commenced this action to recover damages for personal injuries. The defendant cross-moved for summary judgment dismissing the complaint, contending that the plaintiff's deposition testimony revealed that the plaintiff would be unable to prove that the defendant's vehicle was the vehicle involved in the accident. The Supreme Court denied the cross motion, concluding that the defendant had failed to establish, prima facie, that his vehicle was not involved in the accident. The Appellate Division affirmed.
Practice point: A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff's case. Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff's proof revealed by the plaintiff's deposition testimony, this was insufficient to satisfy his initial burden. Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers.
Case: Feldberg v. Skorupa, NY Slip Op 05199 (2d Dep't June 28, 2017)
Here is the decision
Tomorrow's issue: Specific performance as to real property.